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John Marshall 



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HON. GEO. II. WILLIAMS 



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LEGISLATIVE ASSEMBLE' 



STATE OF OKE(U)N 



FEIiKUAlJY J. UXM 




KALKM, ORKUON 

\y. H. I.KJ51>S, STATK IMUNTEU 

litOl 



ADDKK.SS 



John Marshall 



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HON. GEO. II. WILLIAMS 



iiKFUKE TIIK 



Legislative Asseivlbly 



STATE OF O RECKON 



FEBUUAKV 1, l!MH 




SALEM, OREGON 

\V. H. I.EKDS, «TATK PlllXTKK 

1901 



ADDRESS 



ON JOHN MARSHALL, DELIVERED BY HON. GEO. H. 
WILLIAMS BEFORE THE LEGISLATIVE ASSEM- 
BLY OF THE STATE OF OREGON, FEBRUARY 
4, 1901. 



Daniel Webster, in one of his great speeches, said : "By 
ascending to an association with our ancestors, by contem- 
plating their example and studying their character, by 
partaking their sentiments and imbibing their spirits, by 
accompanying them in their toils, by sympathizing in their 
sufferings and rejoicing in tlieir successes and triumphs, we 
mingle our existence with theirs and seem to belong to their 
age." Today, we commemorate the appointment one hun- 
dred years ago of John Marshall as Chief Justice of the 
Supreme Court of the Ignited States, and ascend with hearts 
full of pride and gratitude to an association with the men 
and events of that day. Washington, Madison, Hamilton, 
Jefferson and many others not less worthy were working out 
the problem of self-government ; but in this constellation of 
patriots and statesmen none shone with a clearer, steadier 
and stronger light than John Marshall. Whatever may have 
been the shortcomings of A'irginia in modern times, when she 
was a colony she was old enough and good enough to produce 
men whose deeds shed imperishable luster upon the history 
of our countr}^. Washington deservedly and by universal 
consent holds the first place in the hearts of his countrymen ; 
but if merit is to be determined by the value of his services, 
then, next to Washington among Virginians, John Marshall 
"leads all the rest." 



M I 

To say this is not to disparage the great abilities or merits 
of Madison, Jefferson, or others, but to say that Marshall 
had greater opportunity than his compeers to render valuable 
services to his country. And I may add that Jefferson and 
Madison made some serious mistakes as to matters of govern- 
ment, but none of any consequence was ever made by 
Marshall. Thomas Jefferson devoted his great talents and 
influence to the cause of his country in the War of the Revolu- 
tion, but when the independence of tlie colonies was achieved 
he differed with Washington, Hamilton, Jay, and others as 
to the nature of the general government and the rights of the 
states ; and his resolutions of 1798, incubated by slavery, 
finally broke out into a bloody war for the dissolution of the 
Union. Madison was infected with the same ideas, as indi- 
cated in his Virginia resolutions of 1799, but in his old age 
he became more conservative and more favorable to the 
supremacy of the federal government. 

Marshall, from the beginning of liis public career to the 
end of his life, builded, supported, and defended an inde- 
structible Union, under a government within its constitu- 
tional limits, of absolute sovereignty over the states. Wash- 
ington, Hamilton and Adams, with their followers, called 
"the federal party," favored a broad and liberal construction 
of the constitution, adequate to the growing necessities of 
the country. Jefferson, Madison, and their followers, called 
"the anti-federalists," held to a strict and narrow construc- 
tion of the constitution. Though the federal party, on 
account of its views of the constitution, went down, the drift 
of all political parties of the present day is in favor of the 
federal theory of the government. I can remember the 
time when the dominant party of the country held that 
appropriations by congress for a system of internal improve- 
ments were unconstitutional ; but now all parties hold other- 
wise, and the statesmanship of a senator or representative in 
congress is measured by the amount of money he can extract 
from the public treasury to improve the locality in which he 
lives. One of the main issues in the late presidential elec- 



tion was as to which party liad gone, or would go farthest, 
through congressional legislation, to regulate and control 
the business affairs of the country, which formerly were sup- 
posed to belong exclusively to the states. One of the mis- 
chievous tendencies of the time, in my judgment, is to make 
the general government too much the guardian and bene- 
factor of individual and local interests. 

Great men are born, and not made by education or oppor- 
tunity ; but opportunity is as necessary to the display of great- 
ness as sunshine is to the growth of vegetation. No doubt 
multitudes of men as great as any named in history have lived 
and died in obscurity for the want of an opportunity to exploit 
their greatness. Washington, without the revolution, might 
have continued a respectable planter of Virginia. Lincoln, 
without the slavery agitation, might have continued a lawyer 
of local fame in Illinois, and Gi'ant might have remained a 
humble tanner at Galena, without the war of the rebellion. 
But great men come with great opportunities, and the world 
resounds with their fame. Marshall was a great man, and he 
had greater op})ortunities than his contemporaries to show 
his greatness. He was appointed Chief Justice in 1801, when 
our government was in a chrysalis state ; and long after Wash- 
ington, Adams, Jefferson, Madison and Hamilton had retired 
to private life, he was placing pillars of strength and stability 
under the Constitution of tlie United States. I do not under- 
estimate the value of schools in saying that, while they may 
cultivate, they cannot create greatness. No man can be a 
great poet, painter or judge, whether his learning be little or 
much, without an inborn aptitude for his business. I have 
seen brilliant lawyers elevated to the bench who made poor 
judges. I have seen others, with little repute at the bar, 
make good judicial officers, because they possessed by nature 
a strong and intuitive sense of right and wrong. Theoretic- 
ally, courts are organized to administer justice between man 
and man ; and he whose mind is so constituted that, out of 
the conflicts of litigation, he can make a righteous judgment, 
has the first qualihcation of a good judge. I doubt very much 



[6] 

whether the multitude of law books and the wilderness of 
judicial decisions we now have are of much, if any, advan- 
tage to our courts ; and my reason for this impression is that 
seventy-five and one hundred years ago, when Marshall and 
Kent were judges and law books were comparatively scarce, 
the decisions of the courts were as good as they are at the 
present time, founded, as the decisions now ai'e, more upon 
precedents than upon principles. 

On the twenty-fourth of September, 1755, just as the sheen 
of summer was passing into the gold and russet of autumn, a 
man child was born in Fauquier County, in the colony of Vir- 
ginia. His name was John Marshall. Virginia was then a 
new country, sparsely settled with white people, and most of 
her mountains, streams and forests had never been disturbed 
by the hand of civilization. Nature, in her primordial fresh- 
ness and beauty, was the primary department in the education 
of Marshall. Like Washington and Lincoln, he was a scholar 
without the benefit of schools. Parental instruction and his 
own resources were his sole dependence in his early boyhood. 
To acquire learning under such circumstances is to learn to 
be industrious, courageous and self-reliant. Men who are 
educated in this way are apt to make their mark in the world. 
Ambition, with native vigor of intellect, is the key to success, 
and it makes little difference in the end to a Lincoln whether 
he goes through college or reads his books in a log cabin by 
the light of a blazing pine knot. One of the surprising things 
about Marshall was his literary and professional attainments, 
in view of his limited opportunities for an early education. 
His parents were his only teachers until he was fourteen years 
of age. When he had learned to read, Shakespeare, Milton 
and Pope were about the only books to which he had access. 
To study books like these, away from the allurements of social 
life, and where unsullied Nature "glows in the stars and blos- 
soms in the trees," opens the youthful mind to grand con- 
ceptions of a future career. Between the age of fourteen and 
eighteen years he was favored with instructions by a private 
tutor ; and with qualifications acquired in this way, he de- 



["J 

terraiaed to enter upon the practice of the hiw. He commeuced 
to read BLackstone, but the premonitory convulsions of the 
approaching revolution drew him away from his books to a 
field of excitement, turmoil and danger. 

Patrick Henry's ringing words, " (live me liberty or give 
me death ! '' spread like wild fire througli the settlements of 
Virginia, and military companies were formed to empha- 
size this sentiment. When Marshall was nineteen years of 
age he was made a lieutenant of one of these companies, and 
thenceforward for five years he devoted all the energies of his 
mind and body to the military service of his country. He 
was subsequently appointed general by the legislature of Vir- 
ginia, and tliereafter, until he became Chief Justice, was 
known as General Marshall. Few men have been fortunate 
enough to be distinguished as soldier, statesman and jurist, 
but distinction as to all these justly belongs to Marshall. 
Not to mention minor engagements, Marshall commanded a 
company in the bloody battles of Brandywine, Germantown 
and Monmouth, and w^as highly commended by Washington 
for his skill and gallantry. But more than elsewhere his 
sterling and soldierly qualities were displayed at Valley 
Forge. Washington, after his defeat at Germantown, with- 
drew his exhausted troops to this place for winter quarters. 
Here officers and men alike were exposed to the rigors and 
hardships of an unusually severe winter. The weather was ex- 
tremely cold and the snow knee deep. Hastily and rudely con- 
structed huts were the only protection from the pitiless storm. 
Many of the men were half naked ; few had blankets or shoes, 
and frequently they were without anything to eat. W^ash- 
ington, referring to Valley Forge, truly said that "no history 
now extant can furnish an instance of any army suffering 
such uncommon hardships as ours has done and bearing them 
with the same patience and fortitude." Marshall w^as un- 
daunted under these trying circumstances. He devoted him- 
self to the care of the men, comforted the suffering, visited 
the sick, encouraged the despondent, and was a light and joy 
to that dreary and dismal camp. 



[8] 

When he was twenty-four years of age, after attending a 
course of law lectures by Chancellor Wythe, he commenced 
the practice of law in Richmond. He rose rapidly to the front 
rank of his profession. He was no orator like Patrick Henry, 
but what he lacked in brilliancy lie made up in strength. He 
was tall, lean and angular, ungraceful in his gestures, slov- 
enly in his dress, much like Lincoln in these respects ; but 
his mind was active and vigorous, and his speeches remark- 
able for their clearness, conciseness and force. Marshall was 
a federalist, and believed that governments were made to 
govern, and his political friends soon put him forward as 
their candidate ; and in 1782 he was elected to the legislature 
of Virginia, and twice re-elected. 

Local matters were largely absorbed in the great and 
burning questions concerning the character and powers of a 
general government, the deplorable condition of the finances 
of the country, and the claims of the poor and unpaid soldiers 
of the Jlevolutionary Array. Whether or not there were those 
in that legislature who favored a dissolution of the confed- 
eracy is a question ; but it is an undisputed fact that there 
was a powerful party opposed to any essential change in the 
articles of confederation, and who favored the practical sov- 
ereignty of the several colonies within their respective juris- 
dictions. Marshall, from the beginning, was fearless and 
determined in his contention that the articles of confederation 
were inadequate to a perfect union, and that there ought to 
be a better organized and more efficient general government. 
To Marshall, more than to any other man, is due the decision 
of Virginia to hold a convention to determine whether or not 
she would accept or reject the constitution. Patrick Henry, 
James Madison, .James Monroe, John Marshall, Edmund 
liandolph, and many of the most distinguished men of Vir- 
ginia were members of that convention. 

Such was the state of affairs that upon the decision of this 
convention depended the creation of a national unity or a 
relapse by the colonies into independent and rival communi- 
ties. Patrick Henr}^ James Monroe and George Mason were 



[ 9 1 

the leaders of those opposed to the constitution ; and John 
Marshall, James Madison and Edmund Randolph were the 
leaders of those who favored its ratification. 

Patrick Henry opposed the constitution with all the fervor 
and force of his elocjuence, especially upon three grounds. 
First, he argued that it was dangerous to lodge the power of 
taxation in congress, as that body would be likely to oppress 
and rob the people ; and he contended that the general gov- 
ernment should depend for its revenues upon the voluntary 
contributions of the states. Second, he claimed that congress 
ought not to have the power to declare war, and contended 
that the exercise of this power w^ould end in a military des- 
potism, and that the military forces of the government would 
overrun and subjugate the people, — arguments with which 
we became quite familiar in the late presidential campaign. 
Third, he opposed the establishment of a supreme court ; be- 
cause, as he said, it would usurp powers not delegated to it, 
and destroy the governments of the states. It is easy to see 
that if these views had obtained, the union would have been 
little stronger than a rope of sand. Marshall confronted 
Henry upon all these points with great power and success, 
and the convention ratified the constitution by a majority of 
ten votes. It is impossible to speak too highly of the services 
of Marshall in this convention. 

In 1788 he became a member of the state legislature of 
Virginia. Washington was then President and his adminis- 
tration was bitterly opposed by a majority of this body ; and 
to such an extent was their hostility carried that when a res- 
olution was offered, expressing confidence in the virtue, patri- 
otism and wisdom of AVashington, a motion to strike out the 
word "wisdom" was lost by a bare majority. Marshall here, 
as elsewhere, was a steadfast friend and supporter of Washing- 
ton's administration. John Jay had made a treaty with Great 
Britain containing provisions regarding the commerce of the 
two countries, which the President had approved. This treaty 
intensified the animosity of the anti-federalists to the adminis- 
tration. They denounced it as unconstitutional ; as insulting to 



1 1*> 1 

the dignity and injurious to the interests of the American peo- 
ple. Marshall defended the treaty in a speach that gave him 
a national reputation. President Wasliington had a profound 
respect for the abilities and character of Marshall, and offered 
to make him Attorney-General, and send him as minister to 
France; but, desirous of devoting himself to his profession, 
he declined these appointments. France, at this time in the 
hands of a directory, with the able and unscrupulous Talley- 
rand as its master spirit, had seized and confiscated our ships, 
upon the pretext that Washington had said something in one 
of his messages offensive to that country, and that the Jay 
treaty was inimical to its interests. President Adams, anxious 
to avoid war, appointed Marshall, Pinckuey and Gerry envoys 
extraordinary to adjust the difficulties, if possible, without an 
appeal to arms. When these envoys arrived in Paris they 
were insulted and treated with marked disrespect and told 
that they would not be allowed to open negotiations before 
they had paid the directory $250,000, and arranged for a loan 
by the United States to France. Marshall's correspondence 
Avith Talleyrand as to these matters is highly creditable to his 
head and heart, and, though dignified and moderate in tone, 
was very pointed to the effect that not a moment's considera- 
tion would be given to these mercenary proposals. Nothing 
came from this embassy, and the envoys returned home to be 
honored by their fellow citizens for the stand they had taken 
for the dignity and honor of their country. I have had some 
little insight into European diplomacy, and Avhere venality 
does not control, it is little more than a refined system of lying 
and fraud. False professions of friendship and amity are 
constantly put forward to conceal selfish scliemes or ulterior 
designs upon the integrity and peace of the country to which 
the professions are made. 

Washington was anxious to have Marshall enter congress ; 
and with reluctance, but in deference to tlie wishes of the ex- 
President, in 1799, he became a candidate for that body. He 
was attacked in the most venomous manner ; and with all our 
admiration for our revolutionary fathers, it must be admitted 



that the vituperation and scurrility of party warfare in those 
days were equal at least to anything of the sort we have in 
modern times. He w^as elected by a small majority, and one 
of the first duties he had to perform after taking his seat was 
to announce the death of Washington and introduce suitable 
resolutions, prepared by General Lee, in which appear for the 
first time those famous words, "First in war, first in peace, 
and first in the hearts of his countrymen." 

His speech upon that occasion was a tender and touching 
tribute to his distinguished and departed friend. On the 
thirteenth of June, 1800, he was appointed Secretary of State 
by John Adams, but his administration of that office was 
brief, as the presidential term of Adams expired on the fourth 
of March, 1801, and Marshall was confirmed as Chief Justice 
on the fourth of February, 1801. 

When the Jay treaty was made, France assumed an attitude 
of hostility to the United States, and afterward, when we 
made a treaty with France, England assumed a similar atti- 
tude, each power presuming to thrust its own interests into 
our affairs. Touching these matters, Marshall, as Secretary 
of State, sent a dispatch to Mr. King, our minister in Lon- 
don, in which he said : " The United States do not hold them- 
selves in any degree responsible to France or to Great Britain 
for their negotiations with one or the other of these powers. 
We have repelled and will continue to repel injuries not 
doubtful in their nature, and hostilities not to be misunder- 
stood." It is interesting to note the difference between the 
supercilious treatment of us by these countries when we were 
weak and exhausted by the Revolutionary War, and the dis- 
tinguished consideration they hasten to give us at the present 
time. 

Marshall was forty-six years of age wdien he was appointed 
Chief Justice. Several pen pictures were written of him at 
the time. One writer describes him as a person tall, meager, 
emaciated, his muscles relaxed, his joints so loosely connected 
as not only to disqualify him apparently for any vigorous 
exertion of body, but to destroy everything like harmony in 



[12] 

his air and movements. Another said of him : "He is of a 
tall, slender frame, not graceful or impressing, but erect and 
steady. His hair is black, his eyes small and twinkling, his 
forehead rather low, but his features are in general harmoni- 
ous. His manners are plain, yet dignified, and an unaffected 
modesty diffuses itself through all his actions." Daniel Web- 
ster spoke of him as a plain man, and further said : "I have 
never seen a man of wdiose intellect I had a higher opinion." 
According to these descriptions, I have been struck with the 
resemblance between Marshall and his eminent successor. 
Chief Justice Taney, whom I had the pleasure of meeting in 
1852. Taney was tall, thin and meager in person, w^ith a 
remarkably low forehead, black, piercing eyes, and sharp, 
strong features ; but he was the impersonation of dignity, and 
a typical specimen of an old-fashioned courtly gentleman. 
Taney's opinion in the Drcd Scott Case will compare favorably 
with the opinions of Marshall as an intellectual effort ; but 
the difference is this : Taney's opinion is an ingenious frame- 
work of logic, standing, or trying to stand, upon its apex, 
while the opinions of Marshall are solid structures of reason- 
ing, standing upon a broad, deep, and permanent foundation. 
On the twenty-sixth of September, 1789, the supreme court 
was organized, with John Jay as Chief Justice. He held the 
office until 1795. Rutledge held the office for one year, and 
then Ellsworth until 1801 ; so that when Marshall was ap- 
pointed, the court had been in existence about eleven years 
and was just upon the threshold of its great responsibilities. 
We can have but a feeble conception of the difficulties con- 
fronting this new forum of law and justice. Here was a court 
without any precedent in history, with powers never before 
conferred on any judicial tribunal, starting out on a career 
very much like the experiment of Columbus in sailing out 
upon an unknown ocean, without knowing what he would 
discover or where he would land, or whether or not his voj^age 
would be a disastrous failure. Many, perhaps a majority of 
the people of that time, looked upon this court as a disguised 
enemy to the liberties of the people. Its most sanguine friends 



L 13 J 

had doubts and fears as to its harmonious working with the 
other departments of the government. While it may be true, 
as Gladstone said, tliat "the Amei'ican Constitution is the 
most wonderful work ever struck oft' at a given time by the 
brain and purpose of man;" it is also true that without a 
tribunal of final resort to interpret, construe and enforce its 
provisions, if not a dead letter, it would be the subject of un- 
happy and endless disputation. 

Primarily, and as applicable to all its parts, was the great 
Cjuestion whether or not it should be strictly or liberally con- 
strued ; or, in other words, whether it should be construed 
according to the letter that killeth, or the spirit that giveth 
life. All those opposed to the adoption of the constitution, 
and the republicans, as the anti-federalists w^ere then called, 
with Jefferson at their head, contended for a strictly literal 
construction, because they were jealous of the jurisdiction of 
the federal government and sensitive to the rights of the 
states ; but Marshall, with the wisdom of a seer, and the 
prevision of a prophet, was of a contrary opinion. Referring 
to this subject in the case of Gibbons v. Ogden, he said : "If 
counsel contend for that narrow^ construction which, in sup 
port of some theory not to be found in the constitution, 
would deny to the government those powers which the words 
of the grant, as usually understood, impart, and which are 
consistent with the general views and objects of the instru- 
ment — for that narrow construction that would cripple the 
government and render it unequal to the objects for which it 
is declared to be instituted and to which the powers given, as 
fairly understood, render it competent, then we cannot per- 
ceive the propriety of this strict construction, nor adopt it as 
a rule by which the constitution is expounded." 

Taking all his opinions together, his idea of the constitu- 
tion seems to have been that, expressly or by implication, it 
granted to the general government all the necessary and 
proper means to establish justice, insure domestic tranquility 
and promote the general welfare, and that these means Avere 
largely discretionary ; but at the same time he recognized 



[14] 

the doctrine tliat tlie general government was one of delegated 
and limited powers. It is easy to see that to draw the line 
of demarcation between what was granted and what was 
withheld by the constitution required great good judgment, 
and a comprehensive view of the objects and purposes of the 
government. One of the important questions arising at an 
early day was whether or not the supreme court had a right 
to declare an act of congress void upon the ground that it 
was repugnant to the constitution. This question w^as 
decided by Chief Justice Marshall, delivering the opinion of 
the court in the celebrated case of Marhury v. Madison, in 
which it was held that an act of congress conferring original 
jurisdiction upon the supreme court in a mandamus case was 
unconstitutional and void. Some politicians have com- 
plained of this decision, but its correctness cannot be success- 
fully challenged. 

No decision of Marshall's has been more severely criticised 
tlian his decision in the Dartmouth College Case. The court 
held in that case that a charter granted to the college was a 
contract, and that an act of the legislature of New Hamp- 
shire changing it was void, under that clause of the constitu- 
tion providing that no state shall pass an}^ law impairing the 
obligation of contracts. Much has been said about the pro- 
tection this decision gives to corporations ; but, be that as it 
may, it stands like a gleaming rock to support the supremacy 
of the constitution and the inviolability of contracts. Marshall 
delivered the opinion of the court in Fletcher v. Peck, in 
wdiich it was held that a grant of land by the State of Georgia 
was an executed contract, and that an act of its legislature 
revoking the grant w^as unconstitutional and void. In the 
case of McCulloch v. Maryland, he defined the words "nec- 
essary and proper " in that clause of the constitution provid- 
ing that congress shall have power to make all laws necessary 
and proper to carry into execution the powders granted, giving 
to them a broad and liberal import, so that the general gov- 
ernment might provide for the varying exigencies of its 
administration. In the case of Gibbons v. Ogden he decided. 



[ 15 ] 

delivering the opinion of tlie court, thcat congress had the 
right to exercise exclusive jurisdiction over the navigation of 
the navigable waters of the United States. I have referred 
to these decisions, not so much to discuss or defend them, as 
to show that John Marshall was a firm and consistent pro- 
tector and defender of the constitution and of a strong, effi- 
cient and successful general government. 

Suppose, instead of Jay, Marshall, Kllsworth and their 
associates, the judges had been of those who held, with the 
Kentucky resolutions of 1798, to the effect that a sovereign 
state had a right to nullify the acts of congress, there is reason 
to apprehend that the union would have fallen to pieces at 
the start, and rebellion w^ould have triumphed through the 
supreme court. Suppose that, instead of Lincoln, when the 
rebellion broke out the President had been of those who held 
that the general government had no power to coerce a sover- 
eign state, it is highly probable that instead of the joyousness 
of this day, w^e should be sorrowing over the "broken and dis- 
jointed fragments of a once glorious union.'' I do not know 
Avhether the "Father of Mercies" interferes in a special man- 
ner for the protection of men and nations or not, but when I 
consider how^ near our union has been to destruction and how 
wonderfully we have been preserved as a nation, I am sure 
that faith can find nowhere better evidence of the special favor 
of Divine Providence to a people than in the history of our 
country for the last hundred years. 

An interesting episode in the life of Marshall was the trial 
of Aaron Burr. Burr, in respect to his abilities, stood in the 
front rank of the men of his day ; but if what is said of him 
is true, he was much like Milton's Belial : 

"He seemed 
For dignity composed and high exploit: 
But all was false and hollow." 

He was indicted for treason, and his trial came on at the 
Richmond circuit, ( Uiief Justice Marshall presiding. No man 
ever in the United States, with perhaps the exception of Bene- 
dict Arnold, was so intensely hated as Burr was at this time. 



He had killed Hamilton in a duel, and betrayed and abused 
the confidence of Jefferson and his friends. All the influence 
of the administration, witli Jefferson as President, was thrown 
in favor of the prosecution, and there w^as a hurricane of popu- 
lar clamor for his conviction ; notwithstanding wdiich, Mar- 
shall decided that the evidence Avas insufficient to support the 
indictment, and Burr was acquitted. Shafts of indignation, 
envenomed by party rancor, were hurled at the head of the 
Chief Justice for this decision, but to no purpose. 

"No fire, nor foe, nor fate, nor night, 
This Trojan hero did afright. '" 

Music and banners, the shouting of captains and the sur- 
rounding excitement, inspire soldiers on the field of battle to 
deeds of daring; but the real heroes of the world are men, 
who, w4th nothing to encourage them but their own convic- 
tions of duty, stand like a stone w^all between the friendless 
and forsaken and the fury of the mad and unreasoning mul- 
titude. 

I am proud and happy to say, after more than fifty years 
of experience at the bar, that with few exceptions our judges 
have been men of this description. Bishop Potter is reported 
as having said that a majority of the people are of the opinion 
that the judges of our courts are purchasable. I do not be- 
lieve a word of it ; and in fact I know better, and will ven- 
ture to say that as to intelligence, integrity and courage, and 
in public estimation, our judges will compare favorably with 
the clergymen of our country. Bishop Potter not excepted. 
Moral more than physical courage is the safeguard of our 
national life. Law, justice, truth and virtue are the essential 
elements of our social existence, and their practical ascend- 
ency depends largely upon their fearless support by the pul- 
pits, press and courts of our country. 

I am aware that we are apt to exaggerate the wisdom and 
virtues of our ancestors, but there can be no doubt that the 
men who argued cases before Marshall were among the great- 
est, if not the greatest lawyers this county has produced. 
Webster, Pinckney, Hopkinson, Martin, Ogden and Wirt 



[IT] 

Were some of the leading members of tlie har wlio practised 
in tlie supreme court. Let us imagine ourselves in the court 
room when the case of McCnllorl: v. ]\[aryl(md is before the 
court. Sitting on the right of the Chief Justice are Bushrod 
Washington, Johnson and Livingston, and on his left Duval 
and Story. All are clad in black silk I'obes. No sound dis- 
turbs the impressive silence. All eyes are fixed upon and all 
ears open to hear the great lawyers. Webster, Wirt and 
Pinckney are on one side, and Martin, Hopkinson and Jones 
on the other. The question is, whether Maryland has a right 
to tax a branch of the United States Bank located in that 
state. Webster opens for the bank. Slowly and clearly he 
states the issues of the case ; and then, as he proceeds to ex- 
pound the constitution, he becomes mo]"e animated. His 
swarthy complexion lightens up ; his big, black eyes glow in 
their deep sockets ; and with argument dovetailed into argu- 
ment he seems to build an impregnable fortress around his 
client. Attorney-General Wirt follows on the same side, with 
a speech interesting and attractive for its rhetorical excel- 
lence. Hopkinson and Jones, both eminent in their profes- 
sion, each iiiake an able argument for the state ; and then 
comes Luther Martin, wdio stands at the head of the Mary- 
land bar. He denounces the encroachments of the federal 
government, and pleads with all the earnestness of his ardent 
nature, and all the force of his great abilities, for the rights 
of his native state. Expectation is now^ on tiptoe to hear the 
eloquent Pinckney. He rises with an air of perfect confi- 
dence. He attacks the states' rights doctrine with tremen- 
dous energy. He makes the corridors of the court room echo 
w^ith his resonant voice. All are charmed with the forceful- 
ness of his logic and the splendor of his language. Judge 
Story said of this effort by Pinckney that he had never heard 
a greater speech in his life. The court held unanimously 
that the bank was a proper fiscal agent of the government, 
and not subject to the taxing powders of a state. 

Marshall's opinions are quite elaborate, but they contain 
no pedantic display of learning or useless glitter of words, but 



[18 I 

move on in simplicity and strength, like the current of a deep 
river to their irrefragable conclusions. I can judge of the 
merits of Marshall as a public man by his official acts and 
opinions, but I have to depend upon his biographers for any 
account of his private life. According to these he was atten- 
tive, patient and courteous upon the bench, amial)le and alfa- 
ble in society, simple and unpretentious in his manners, and 
exemplary in his habits. His home, when not occupied with 
the courts, was a farmhouse, where he was accustomed to lay 
aside his judicial dignity and pitch quoits witli his farmer 
friends, an amusement in which he delighted and in which 
he excelled. He was a loving and lovely man in his family, 
and when his wife died, with wdioni he had lived happily for 
forty-eight years, he wa« overwhelmed with grief and w^ould 
not be comforted. I hold that the true value of a man is de- 
termined by his family and social relations. Men in public 
life, intent upon notoriety, may be heartless and unscru])u- 
lous and under false colors win favor and applause ; but in the 
home and at the fireside no such disguise can be assumed, 
and the man really is what he appears to be. The hearth- 
stone is the touchstone of real worth. 

Most men in the religious, professional and political world 
have an ideal — an embodiment of what they would like to be. 
Though, without doubt, Marshall had passions and feelings 
like other men, 1 have discovered no serious flaw in his char- 
acter, and know of no reason why he should not stand as an 
ideal for the legal profession. All lawyers cannot be as great 
as Marshall was, but all lawyers can be as great as he was in 
all that constitutes the beauty of a character. Marshall was 
an author as well as a soldier, statesman and jurist, and wrote 
an exhaustive and accurate life of Washinirton. He was also 
a member of the Constitutional Convention of Virginia in 
1830, wiien he was sevcnty-tive years old, and was treated by 
that body with all the veneration and respect due to his great 
age and experience. 

I ^w^is admitted to practice in the supreme court of the 
United States thirty-five years ago, and have learned to look 



[19] 

upon tliat court as n <^veat tribunal — the greatest in the 
world. Forty-live states, with seventy-six millions of people, 
submit to its jurisdiction and abide l\y its decisions; and 
upon this fact we may anchor our hopes for the future preser- 
vation and domestic peace of the Amei-ican Union. Consti- 
tutions and ci'eeds, churches and courts, are more or less 
responsive to ]nil)lic o[)inion ; but the su[)reme court of the 
United States is as far removed from tlie influence of passion 
and prejudice as it is possible for a human tribunal to be. 
Sitting ill the Capitol, midway between the two houses of 
congress, and independent of l)Oth, this exalted and serene 
tribunal holds the balances of the government with a firm 
and equal hand. 

Anniversaries like these are instructive an<l salutary, and 
appeal to us from the sacred precincts of the tomb to avoid 
the mistakes and emulate the vii'tues of the great and good 
men who have adorned our history. .John Marshall, at the 
ripe old age of eighty, and after he had l)een Chief .Justice 
thirty-four years, to borrow from the liturgy of the Episcopal 
Church, to which he belonged, "was gathered to his fathers, 
having the testimony of a good conscience, in the communion 
of the catholic church, in the confidence of a certain faith, 
in the comfort of a reasonable religious and holy hope, in 
favor with God, and in perfect charity with the world." 






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